ST LOUS, MO – Everyone by now has heard of the McCloskey’s. They are the couple who exited their home with guns after members of Black Lives Matter broke down the gate in their gated community to protest.
The McCloskey’s were arrested and charged with aggravated assault, while they stood on their porch and received threats from the protesters.
Now, a judge has banned the St. Louis Circuit Attorney and her office from processing the case due to improper emails.
She should be removed as a circuit attorney.
— George Pittman (@pittman_george) December 10, 2020
In what some have labeled a miscarriage of justice from the beginning, a judge has now taken notice of improper actions from the offices of Kim Gardner and her entire office.
While LET reported previously that the initial investigating detective refused to sign search and arrest warrants several times from the prosecutors, what apparently caught the attention of the judge were fundraising emails that Gardner had been sending.
Circuit Court Judge, Thomas Clark II, banned Gardner and her office from prosecuting any criminal case against Mark and his wife, Patricia. The reason behind this move?
Gardner, or at least her campaign, apparently gave the appearance that the McCloskey’s were only being criminally charged to bolster her politically. Clark said:
“In short, the Circuit Attorney’s conduct raises the appearance that she initiated a criminal prosecution for political reasons.”
Al Watkins, an attorney for the couple, said:
“Prosecutors are held to a higher standard legally, ethically, and politically. When you swing and miss on all three you have to hit the lockers.”
Gardner’s office issued a statement which, in part, read that they will “review the court order and determine our options.”
In the statement, her office claims that they were not made aware of the ruling in advance and only learned about it in media reports.
For those not in the law enforcement field, let me clarify. These kinds of rulings are not made in private. They are made during a court hearing in which members of the prosecution and defense are both present.
Clark’s ban on Gardner and her office from prosecuting this case, does not mean that the case is finished. A judge will appoint a special prosecutor, who will review all facts and evidence and produce a filing decision. When that appointment will be made remains to be seen.
The McCloskey’s, who are both attorney’s, were indicted by a St Louis grand jury in October of this year for unlawful use of a weapon and tampering with evidence. They were initially indicted in July of this year, but the updated charge of tampering with evidence was added in October.
The charge of tampering with evidence was added when it was determined that one of them may have disabled the firearm Patricia used after the incident.
It should be noted, from our article from August 8th, that Assistant Circuit Attorney Chris Hinckley ordered the crime lab to “disassemble and reassemble” the gun in question for the purpose of determining whether it was capable of firing. It was found that it was not.
In the emails cited by the judge, Gardner’s campaign cites the President’s and the Governor’s criticisms when it came to filing criminal charges. Emails claimed that Gardner was “fighting for the two who pointed guns at citizens during the Black Lives Matter protests.”
One of the emails was sent within 48 hours after Gardner announced that she had decided to file criminal charges. According to 5 On Your Side, her campaign raised over $17,000 between July 17th and July 23rd allegedly as a result of those emails.
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Report: McCloskey detective twice refused to sign prosecution documents – ‘You cannot be serious with this one.’
August 8, 2020
ST. LOUIS, MO- In June, angry protesters had broken into a gated community … and a couple decided to take action.
Mark and Patricia McCloskey, not knowing the intent of the mob, became in fear for their own safety and that of their property upon seeing them. The McCloskey’s armed themselves and stood outside in an effort to prevent the mob from entering onto their property.
St. Louis Circuit Attorney filed felony criminal charges on them for brandishing the firearms. This week, we learn the charging officer in the case initially refused to sign the affidavit at least twice based on his belief of the law.
Democrat St. Louis Circuit Attorney Kim Gardner believed that the McCloskey’s should face criminal charges for brandishing the firearms in the area of the angry mob.
However, there are a large number of people who believe that they were simply defending their property and themselves since they did not know the intent of the angry mob. Regardless, Gardner wished to move forward with felony charges and began the process with her office.
St. Louis Police Detective Sergeant Curtis Burgdorf was the lead investigator on the case.
What occurs in normal situations are that the detectives are normally the ones that draft the arrest warrant paperwork then send it to the prosecutor’s office for review and approval prior to submitting to a judge.
For whatever reason, that was not the way this case was done. Instead, the prosecutor’s office completed the paperwork and sent it to the detective to sign.
Paperwork from Assistant Circuit Attorney Chris Hinckley went to Burgdorf for his review.
Burgdorf immediately voiced concern on if the guns the McCloskey’s were displaying were real or not. That is because the firearms must be deemed real and able to fire in order for any criminal charge involving a firearm in St. Louis to be filed.
“At this point, everything points to these weapons being real and loaded, but no one has asked or confirmed. Come trial, they’ll say they were waiving around a BB gun and an air rifle.”
Not satisfied with the speed of the investigation, Hinckley emailed Burgdorf’s commander, Major Angela Coonce, requesting assistance in completing the case. In documents obtained from 5 On Your Side, Hinckley email to Coonce voiced concern over the speed of the investigation.
“Our office is receiving inquiries from the public and press about a warrant application and potential charges. We’ve thus far said the matter ‘remains under investigation.’
I’d really like to avoid pointing to a police follow-up request as the hold-up, but I won’t control the messaging if this goes on any longer. Please see what you can do to help this along. Again, I’m asking for priority on the firearms issue.”
A search warrant was ultimately approved and executed. During the search, law enforcement recovered the two firearms that were involved in the situation. Both firearms were sent to the Crime Lab to determine if they were in fact real firearms and capable of firing.
According to 5 On Your Side, those firearms were received by the lab, but only one, the long gun, was able to fired.
The handgun was unable to be fired until Hinckley ordered the lab to “disassemble and reassemble” the handgun in order to make it capable of “lethal use.”
After this was completed, Hinckley completed court documents alleging that it the handgun, which he knew was false, stating that the gun was capable of being fired at the time of the incident.
If this does not show the case has major problems, concerns that Burgdorf had that prevented him from initially signing that Hinckley wrote will. Hinckley claimed that the mob was there to protest for social justice.
However, the mob was not there for that reason, they were to call for the resignation of Mayor Lyda Krewson.
Hinckley also wrote in the affidavit that Patricia’s was “armed with a semi-automatic handgun.” Burgdorf’s response:
“What appears to be a semi-automatic handgun. You cannot be serious with this one. Again, this is really problematic.”
Burgdorf’s comments are clearly because of his knowledge that the gun was incapable of firing prior to Hinckley’s order to reassemble the gun to work properly.
Burgdorf also calls out Hinckley in another part of the emails when it was written that the mob walked through an open gate.
Burgdorf, playing the part of a prosecutor tells the attorney:
“Your points here are really problematic. It seems to go beyond oversight and into purposeful ignorance. I suggest you very quickly re-assess this evidence.”
The reason this was problematic is because there were claims the mob broke the gate to make entry and there was damage found which could suggest that it happened.
Interestingly, in most law enforcement agencies, it is the prosecutors who have issue with probable cause written by law enforcement in their affidavits. It is also the investigator who signs these (typically) because it is their case, not the case of the prosecutor.
In this circumstance, roles appeared to have been reversed and it was the detective who was plugging holes in the probable cause – not the other way around. When it works the proper way, it provides a check and balance for both the officer and prosecution to try to tighten up cases prior to arrests being made.
This case seemed to be weak at the very onset of the investigation when it appeared that the McCloskey’s only point in arming themselves was to protect themselves and their property. They never uttered any threats nor made any derogatory statements to the mob, none that were reported nor heard on video of the incident.
Add in the allegations of manipulation of the evidence in order to make a chargeable offense and this case most likely goes no where.
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